ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 July 2019 DOCKET NUMBER: AR20170008900 APPLICANT REQUESTS: an upgrade of his under other than honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he is a Vietnam Veteran and what he did was not thought through. He states he takes full responsibility for his actions and if he had to do it over again he would have done things differently. His states his two daughters lives were at stake and their mother was doing drugs and leaving them home alone. His mother and brother would pick up his daughters from time to time to take care of them. He received a call from him mother asking him to come home but he had no leave. He states he talked to his Sergeant who told him to do what he needed to do to make sure his daughters were alright. He states his wife had someone sign papers to sell their house and she moved around from place to place. It took him a while to finally locate them to make sure his daughters were okay. His daughters are now productive citizens and have families of their own. He would like an upgrade of his under other than honorable conditions to honorable. 3. A review of the applicant’s service record show the following: a. He enlisted in the Regular Army on 17 August 1970. b. On 7 January 1971, he departed his unit in an absent without leave (AWOL) status and on 5 February 1971, he was dropped from, the rolls as a deserter. He returned to military control on or about 4 May 1971 and place din pre-trial confinement. c. On 10 May 1971, he was convicted by a summary court-martial of one specification of being AWOL from 7 January 1971 to 4 May 1971. The court sentenced him to confinement at hard labor for 30 days, forfeiture of pay, and reduction to E-1. The convening authority approved the sentence on 24 May 1971. d. On 27 May 1971, summary court-martial order 63 set aside the sentence from summary court-martial order number 138 and all rights, privileges, and property of which the accused had been deprived by virtue of that portion of the sentence so set aside will be restored. e. On 3 July 1973, the applicant went AWOL again. He was dropped from the rolls as a deserter. He returned to military control on or about 19 March 1974. f. On 22 March 1974, court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) show he was charged with being AWOL from 3 July 1973 until on or about 19 March 1974. g. On 28 Mar 1974, the applicant submitted a request for discharge for the good of the service under the provisions of Chapter 10, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). The applicant stated prior to completing the form he had been afforded the opportunity to consult with legal counsel. In his request, he acknowledged: * he was advised of the basis for the contemplated separation action under provisions of chapter 10, AR 635-200 * he was advised if his request for discharge was accepted he may be discharged under other than honorable conditions and furnished an undesirable discharge certificate * he was advised that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * he was advised once the request was submitted, it may be withdrawn only as provided in paragraph 10-5, AR 635-200 * he elected to submit a statement in his own behalf h. On 1 April 1974, the applicant’s immediate, intermediate, and senior commanders recommended approval for discharge. i. On 4 April 1974, the separation authority approved the applicant’s discharge with an Undesirable Discharge Certificate. j. On 5 April 1974, the applicant was discharged from active duty. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), as amended by a DD Form 215 (Correction to DD Form 214) shows he was discharged under the provisions of AR 635-200 chapter 10 in the rank of private/E-1 with and under other than honorable conditions characterization of service. He completed 2 years, 6 months, and 18 days of active service with 399 days of lost time. He received the National Defense Service Medal, Vietnam Service Medal, Overseas Service Bar and Marksman Marksmanship Qualification Badge (Rifle). i. On 24 Jan 1982, the Army Discharge Review Board reviewed the applicants case and determined he was properly discharged. They denied his request for upgrade. j. On 22 March 1990, the Army Board for Correction of Military Records reviewed the applicants case and denied the applications request for upgrade. 4. By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 5. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to multiple lengthy AWOL offenses, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. AR 635-200 Personnel Separations-Enlisted Personnel, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 1-9e (General discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 states that a Soldier who has committed an offense or offenses, the punishment for which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008900 4 1